Obey Financial Group, Inc. v. Archie Blue, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-1544 consolidated with CA 07-1545

OBEY FINANCIAL GROUP, INC.

VERSUS

ARCHIE BLUE, JR.

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 222,994 C/W 222,995
HONORABLE JOHN C. DAVIDSON, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and James T. Genovese,
Judges.

AFFIRMED.

Genovese, J., concurs in the result.

Robert G. Nida
Gold, Weems, Bruser, Sues & Rundell
P. O. Box 6118
Alexandria, LA 71307-6118
(318) 445-6471
Counsel for Plaintiff/Appellee:
Obey Financial Group, Inc.

Newton T. Savoie
Attorney at Law
2475 Canal St., Suite 306
New Orleans, LA 70119
(504) 822-4010
Counsel for Defendant/Appellant:
Archie Blue, Jr.

Marcus Anthony Allen, Sr.
Attorney at Law
840 S. Washington St.
Lafayette, LA 70501
(337) 289-1762
Counsel for Defendant/Appellant:
Archie Blue, Jr.

SAUNDERS, Judge.

FACTS AND PROCEDURAL HISTORY:

These consolidated suits were initiated by Obey Financial Group, Inc.

(hereinafter “OFG”) on behalf of its owner, Mr. Willie P. Obey (hereinafter “Mr.

Obey”), and against Mr. Archie Blue, Jr. (hereinafter “Mr. Blue”), individually and

as usufructuary and trustee of the Mercedes Hicks Blue testamentary trust (hereinafter

“the Trust”), to enforce an alleged promissory note executed by Mr. Blue. The

combined suits allege that defendant, Mr. Blue, is indebted unto petitioner, OFG,

under a May 10, 2005, promissory note and an April 24, 2003, promissory note which

is secured by a collateral mortgage. OFG alleges that Mr. Blue failed to make

payments on the April 24, 2003, note when due, which allegedly caused a default

under the terms of the May 10, 2005, note.

OFG initially instituted a suit against Mr. Blue for the enforcement of the May

10, 2005, promissory note under docket number 222,995. OFG then filed a motion

for summary judgment in that matter on February 14, 2006. Following oral

arguments, that motion was denied, and Mr. Blue was permitted by the trial court to

amend his previously-filed answer to assert fraud as an affirmative defense. In

conjunction with the claim designated 222,995, OFG also filed suit for executory

process against Mr. Blue under docket number 222,994, seeking enforcement of the

April 24, 2003, note.

On June 15, 2006, upon a motion filed by OFG, the trial court consolidated suit

number 222,995 into suit number 222,994. Thereafter, OFG again filed for summary

judgment in both consolidated cases, arguing that Mr. Blue’s First Amended

Supplemental Answer and Reconventional Demand failed to show a specific

suppression, misrepresentation, or omission as required to support an allegation of

fraud.

Due to a “flare-up” of his Crohn’s Disease, Mr. Blue’s counsel submitted on

March 23, 2007, a Motion for Extension of Time to file Pre-Trial Memorandum in

Opposition of Motion for Summary Judgment and a Motion for Continuance.

Counsel for OFG objected to these motions on the basis that the required time for

filing the memorandum in opposition had passed prior to opposing counsel’s being

placed on bed rest by his doctor. The trial court in its discretion permitted Mr. Blue’s

counsel to file the memorandum in opposition, but stated that counsel would not be

allowed to argue orally on behalf of Mr. Blue at the hearing. Mr. Blue’s counsel then

prepared and submitted the memorandum in opposition, along with a Second

Amended & Supplemental Answer & Reconventional Demand (hereinafter “second

amended answer”). The second amended answer contained allegations

particularizing Mr. Blue’s claims of fraud and ill practices. However, Mr. Blue’s

counsel did not obtain leave of the trial court before submitting the second amended

answer.

On June 18, 2007, the parties appeared in court for the hearing on the motion

for summary judgment. After making the appearances for the record, counsel for Mr.

Blue was not permitted to orally address the court for the remainder of the hearing.

Counsel for OFG presented a brief argument.

On September 6, 2007, the trial court issued a judgment in favor of OFG. In

reaching this result, the trial judge did not consider the particularized allegations of

fraud contained within the second amended answer. Mr. Blue now appeals that

judgment to this court, charging three assignments of error.

ASSIGNMENTS OF ERROR:

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1. Did the trial court err in granting OFG’s motion for summary judgment based

on the failure of Mr. Blue to particularly allege fraud by showing a

misrepresentation, suppression, or omission?

2. Did the trial court err in granting OFG’s motion for summary judgment by

concluding that no genuine issue of material fact existed in the summary

judgment motion at issue here, in light of a trial court’s previous ruling that a

genuine issue of material fact existed on the same issues prior to the

consolidation of the cases?

3. Did the trial court err in granting OFG’s motion for summary judgment in light

of the jurisprudential reluctance to grant summary judgment when that grant

hinges upon such subjective inquiries as OFG’s intent to defraud?

ASSIGNMENT OF ERROR #1:

In his first assignment of error, Mr. Blue argues that the trial court erred in

granting OFG’s motion for summary judgment based on his failure to allege fraud

with the requisite degree of particularity. Specifically, Mr. Blue contends that the

filing of his second amended answer with the court should be sufficient to satisfy the

pleading requirement. We disagree.

Louisiana Code of Civil Procedure Article 1151 governs the amendment of

answers. In pertinent part, that article declares: “A defendant may amend his answer

once without leave of court at any time within ten days after it has been served.

Otherwise, the petition and answer may be amended only by leave of court or by

written consent of the adverse party.” La.Code Civ.P. art. 1151 (emphasis added).

Thus, in order for a second amended answer to square with La.Code Civ.P. art. 1151,

the amending party must first obtain leave of court or written consent of the adverse

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party.

OFG argues that Mr. Blue did not comply with La.Code Civ.P. art. 1151 in

submitting his second amended answer. We agree. Here, the record indicates that

Mr. Blue neither requested leave of the trial court nor obtained written consent of the

opposing party before filing his second amended answer. Instead, Mr. Blue chose

simply to file that document into the record as if it was his right to do so under the

law. It was not, and thus the trial court did not err by refusing to consider the second

amended answer when ruling on the motion for summary judgment then before it.

Having ruled that Mr. Blue’s second amended answer is not validly part of the

record, we must now evaluate whether the allegations contained outside the second

amended answer are sufficient to meet the particularity requirements for pleading

fraud. “In pleading fraud or mistake, the circumstances constituting fraud or mistake

shall be alleged with particularity.” La.Code Civ.P. art. 856; see also Karst v. Fryar,

390 So.2d 238, 242 (La.App. 3 Cir. 1980), writ not considered, 396 So.2d 1350

(La.1981) (“[B]aseless, conclusory assertions . . . do not suffice to create a genuine

issue of fact.”). Here, although Mr. Blue’s first amended answer alleges fraud on the

part of OFG, such allegations appear in the broadest possible language: “[T]he

contract was executed under the commission of fraud and duress by Petitioner.” At

no other point in Mr. Blue’s pleadings do these allegations even begin to rise to the

level of specificity required by La.Code Civ.P. art. 856. Thus, as we do not find the

trial court erred in holding that Mr. Blue failed to allege fraud with the requisite

degree of particularity, we find this assignment of error to be devoid of merit.

ASSIGNMENT OF ERROR #2:

In his second assignment of error, Mr. Blue argues that the trial court erred in

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concluding that no genuine issue of material fact existed in the summary judgment

motion at issue here in light of the fact that the trial court found that a genuine issue

of material fact did exist in a prior summary judgment motion, which was made prior

to the consolidation of the cases. We disagree.

This court previously discussed at length the responsibilities incumbent upon

a reviewing court in summary judgment cases in Kumpe v. State, 97-386, pp. 3-4

(La.App. 3 Cir. 10/8/97), 701 So.2d 498, 499-500, writ denied, 98-50 (La. 3/13/98),

712 So.2d 882:

Appellate courts review summary judgments de novo under the
same criteria that govern the district court’s consideration of whether
summary judgment is appropriate. Potter v. First Federal S & L, 615
So.2d 318 (La.1993). A motion for summary judgment should be
granted if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with affidavits, show that there exists no
genuine issue as to any material fact and that the mover is entitled to
judgment as a matter of law. La.Code Civ.P. art. 966; Haywood v.
Louisiana Sugar Cane Products, 96-1151 (La.App. 3 Cir. 3/5/97); 692
So.2d 524.
The first issue that must be addressed in reviewing a trial court’s
grant of summary judgment is whether any genuine issues of material
fact exist. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512
(La.7/5/94); 639 So.2d 730, appeal after remand, 96-1837 (La.9/27/96);
680 So.2d 1163. The reviewing court must next address whether
reasonable minds could conclude, based on the facts presented, the
mover is entitled to judgment. Id. In other words, summary judgment
is appropriate when all relevant facts are brought before the court, the
relevant facts are undisputed, and the sole issue remaining is the
conclusion to be drawn from the relevant facts. Id. If the mover’s
supporting documentation is sufficient to establish that no genuine issue
of material fact exists, the burden of proving the existence of a genuine
issue of material fact shifts to the nonmoving party. McCoy v. State
Farm Mut. Auto Ins. Co., 95-689 (La.App. 3 Cir. 11/2/95); 664 So.2d
572. To satisfy his burden of proof the nonmoving party must not rely
on the mere allegations or denials of his pleadings, but his response
must set forth facts showing that there is a genuine issue for trial.
La.Code Civ.P. art. 967. Moreover, as we noted in Haywood, the
legislature’s recent amendment to La.Code Civ.P. art. 966 increases this
burden by favoring summary judgment and by requiring that the
nonmover establish the existence of proof of an essential element of his
claim for which he will bear the burden of proving at trial. Haywood,

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692 So.2d 524.

Moreover, the supreme court previously dealt with a matter similar to that found here

in American Bank v. Saxena, 553 So.2d 836 (La.1989). There, in analyzing a motion

for summary judgment regarding the payment of promissory notes, the court

proclaimed:

Under the Uniform Commercial Code, a “holder” is a person who
is in possession of an instrument drawn or issued to him or his order.
R.S. 10:1–201. A negotiable instrument must (a) be signed by the maker
or drawer; and (b) contain an unconditional promise to pay a sum certain
in money; and (c) be payable on demand or at a definite time; and (d) be
payable to order or to bearer. R.S. 10:3–104. . . .
Unless specifically denied in the pleadings each signature on an
instrument is admitted. R.S. 10:3–307(1). When signatures are
admitted or established, production of the instrument entitles a holder to
recover on it unless the defendant establishes a defense. R.S.
10:3–307(2).
“. . . Once signatures are proved or admitted, a holder
makes out his case by mere production of the instrument, and is
entitled to recover in the absence of any further evidence. The
defendant has the burden of establishing any and all defenses, not only
in the first instance but by a preponderance of the total evidence. . . .”
R.S. 10:3–307, comment 2. (Emphasis added)

Id. at 842 (first emphasis added). Thus, according to Saxena, if the promissory notes

qualify as “negotiable instruments,” then absent Mr. Blue’s establishment of a

defense to their payment, there is no genuine issue of material fact regarding OFG’s

right to recover the amounts represented thereby.

Here, the promissory note dated May 10, 2005, is signed by Mr. Blue, contains

an unconditional promise to pay $275,000.00 plus 17.50% interest from date of

demand until paid, became payable in May 2006, and is made payable on its face to

the order of OFG. Thus, the promissory note qualifies as a “negotiable instrument.”

In addition, the May 10, 2005, note contains language allowing OFG to declare

that note due and payable in the event that Mr. Blue defaults under any other

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extension of credit with OFG—including the April 24, 2003, promissory note at issue

here. The record indicates that Mr. Blue’s failure to make two consecutive payments

on the April 24, 2003, note caused OFG to exercise on December 23, 2005, its right

to demand payment on the May 10, 2005, note. As such, unless Mr. Blue established

at the trial level a defense to payment of that note, OFG’s mere production of the

negotiable instrument was sufficient to justify the trial court’s granting of summary

judgment in favor of OFG.

Mr. Blue attempts to mount such a defense in the case at bar by alleging fraud,

yet as previously discussed, his failure to allege that affirmative defense with the

required degree of particularity precludes that claim from being properly at issue here.

Because absent such a defense reasonable minds could not conclude that OFG was

not entitled to summary judgment, we must hold that the trial court did not err in

granting OFG’s motion for summary judgment. Thus, we find this assignment of

error to be without merit.

ASSIGNMENT OF ERROR #3:

In his last assignment of error, Mr. Blue argues that the trial court committed

error in granting OFG’s motion for summary judgment in light of our courts’

jurisprudential reluctance to grant summary judgment when that grant hinges upon

such subjective inquiries as OFG’s intent to defraud. Because we have already held

that Mr. Blue’s failure to plead fraud with the requisite degree of particularity

precludes his fraud claim from being considered by this court, OFG’s alleged

subjective intent to defraud Mr. Blue is not at issue in the case at bar. Thus, this

assignment of error is moot.

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CONCLUSION:

For the above stated reasons, we affirm the decision of the trial court. Costs

are to be taxed in full to plaintiff, Mr. Blue.

AFFIRMED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3,

Uniform Rules, Courts of Appeal.

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